Asserting that the Right to a decent funeral can also be traced in Article 25 of the Constitution of India, the Calcutta High Court on Wednesday ruled that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world.
The Court was also of the firm view that the right of the family of a Covid- 19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India.
Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee were pronouncing the judgment on a PIL raising the following two issues, inter alia: The four issues are as follows:
i) The human remains/dead bodies of persons inflicted with Covid-19 are being disposed of by the administration unceremoniously and in an undignified manner without showing even a semblance of respect to the mortal remains.
ii) Relatives and friends of persons admitted to hospitals with Covid-19 or persons who have contracted the disease whilst in hospitals having been admitted for some other malady, and who subsequently passed away, are not being permitted to have a last look at or to pay last respect to the mortal remains of the dead person and to perform the last rites.
The division bench opined that there is no scope for doubt any more that the right to life enshrined in Article 21 includes the right to life with dignity, agreeing with the submission of the petitioner that living with dignity includes not only the dignity of a person when he is alive but also the dignity following his death. "The right to dignity and fair treatment under Article 21 is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of Covid-19, whether by cremation or burial, should be done with due respect and solemnness", said the bench, also agreeing that the near and dear ones of a deceased person who had contracted Covid-19 should have an opportunity to have a final look at the human remains of the person and to pay their last respect and homage to the departed soul.
The bench said that traditions and cultural aspects are inherent to the last rites of a person's dead body, and that the right to a decent funeral can also be traced in Article 25 of the Constitution of India which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution.
The bench was of the view that the right to live a dignified life extends up to the point of death including the dignified procedure of death. "We are inclined to interpret the phrase 'dignified procedure of death' in an expansive manner so as to include dignified disposal of the human remains of a deceased. We unhesitatingly hold that the mortal remains of a deceased person must be treated with care, respect and dignity and have to be disposed of by burial or burning, according to the religion, in so far as the same is ascertainable, that the deceased person practised. It makes no difference if the deceased person was infected with Covid-19", held the bench, adding that of course, all requisite safety and precautionary measures must be taken by the persons who carry out the funeral.
As regards the second issue, i.e., the relatives and friends of Covid-19 victims are not being permitted to have a last look at or to carry out the last rites of the deceased; and that, the same should be permitted, the bench noted that the Government Notification dated 6 June, 2020 already provides opportunity for the family members of the deceased to see the mortal remains and pay their last respect. "In our considered view, the family members should be permitted to perform the last rites of a deceased notwithstanding that the deceased was infected with Covid-19", said the bench.
The bench reflected that by and large, whether it is for a theist or atheist, freedom of conscience and free profession and practice of religion is protected under Clause (1) of Article 25 of the Constitution. The term "religion" in that Clause need not necessarily be linked to any particular religion as is understood as a religious denomination. It is a matter of faith and of one's own conscience which could trigger the profession and practice of what may be religion in the larger sense to a particular individual.
With this concept in mind, the bench said that it needs to be delineated that it is not the religious practices of the different religious denominations which matter in such instances. It is a matter of connectivity with the person who has died and the near relatives may be in whatever degree of relationship. Fundamentally, human relationship between the parent and child, husband and wife, grandparent and grandchild, etc. is not based on any religious tenet. It is a matter of faith and conscience of every individual. If such a person is to take recourse to any practice and free profession on the foundation of freedom of conscience in terms of Clause (1) of Article 25 of the Constitution of India, it could get abridged only by the reciprocal covenant that such activity should be subject to public order, morality and health and to other provisions of Part III of the Constitution. This is the inbuilt mode of controlling such activities even in terms of Clause (1) of Article 25. The bench noted that the eligibility of a person to perform the funeral rites, be it connected to cremation or burial, may be sometimes guided by factors which may be akin to accepted practice even in religious denominations.
Looking at the varied practices among the Hindus as a whole or different denominations of Hindus, the bench said that one thing is clearly certain; the facility to provide ritualistic offerings by way of water, flowers or even certain grains are quite often seen as fundamentally for the satisfaction of the person making such offer to the dead before burial/cremation, as the case may be. Post cremation rites including, receiving the mortal remains in the form of ashes and bones which are treated as sacred to the near relatives of the departed and further handling of those materials in accordance with faith and belief also stands accepted in such communities (the bench said that profitable reading in this regard can be had from Garuda Purana, Vishnu Purana and other ancient Hindu texts and scriptures).
In so far as Christians are concerned, the bench appreciated that if one were to look at different denominations, it can be seen that there are practices, which may with slight variations, generally provide for prayers before the dead bodies are disposed of by burial and by offering prayers even after disposal on different dates and times depending upon the faith, belief and practice in different Churches. A perusal of canons would show that different ritualistic processes are delineated for such matters.
In so far as the Muslims are concerned, the bench said that whatever be the difference in beliefs and practices among the Hanafis, who are treated as a majority group of Sunnis in India, on one hand, and the Shias on the other hand, one clear thread of connectivity is the faith and belief that the disposal of human remains is a must as well as post Kabar (Burial) rituals (Certain passages from Al-Bahr-ur-Raiq will buttress this aspect). The family also intends to have its own practices carried forward to the extent it relates to their faith and belief.
"We refer to all these only to demonstrate that by and large the Indian community always has the desire for intricate practices in the form of rituals with the participation of near relatives of a deceased, following what could be permissible under given circumstances. The restrictions that can be imposed in respect of public order, morality and health and to the other provision of Part III of the Constitution necessarily provide room for fair provision for relatives of the deceased persons to participate to the extent possible in the funeral of a deceased, subject to the respective norms", explained the bench.
The Court went to the extent of saying that it is delineable as part of human rights. "We also do not see that the legislative purpose and intention behind putting the Disaster Management Act, 2005 in place is to provide a piece of legislation which could be treated as annihilative in nature. The whole concept of disaster management and the regulatory provisions which can be generated within the domain of Disaster Management Laws are to be treated, understood and applied as a shield to energise and enable better governance in the wake of disaster by following preventive management, protective management and post disaster curative management of all such situations", said the bench.
It expressed that view that in this spectrum of reasoning, the constitutional aspirations of the people in a civilised society cannot be discounted except when and unless it becomes disorderly behaviour which would infract the public order, morality and health. Reverting to the principles emanating out of the Constitution of India, the bench reiterated that the word life in Article 21 means a life of dignity and not just an animal life. The transition of the concept of animal life to lead a life with dignity which is expected for a human life necessarily postulates the freedom of the individual to maintain for him and enjoy the universal concept of love and devotion to the near and dear ones and also to suffer sorrow and do such things which would alleviate sadness which emanates out of unfortunate events. In maintaining just and reasonable human relationship built on human and constitutional values, the bench indicated that it is among the fundamental duties of citizens in terms of Article 51A of the Constitution to promote harmony and spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of woman; to value and preserve the rich heritage of our composite culture. "These are soothing balms to one and all among the Indian citizens in days of happiness as well as of sorrow", said the bench.
"The traditional belief in our country is that unless the last rites are performed before the burial/cremation, the soul of the deceased shall not rest in peace. This belief is deep rooted in our country. It also has an emotional and sentimental aspect", said the bench, expressing firm belief that the family members of a deceased who was infected with Covid-19 should not be deprived of the right to perform the last rites of the deceased, subject to them taking all necessary precautionary measures.
Referring to provisions of law only to show that the legislature has imposed duties on the local self-government institutions to maintain hygiene in the public domain and has empowered such institutions to take appropriate measures to combat the menace of an epidemic or deadly disease, the bench clarified that, however, these powers must be exercised by the donees of such powers responsibly and by ensuring that the rights of the citizen which are recognized by law, are not jeopardized or curtailed unnecessarily.
While exercising their power to impose restrictions on citizens in their way of life in the wake of outbreak of an endemic like Covid-19, a fine balance must be struck by the State and the local self-government institutions so that the right of a citizen to perform the obsequies of his near and dear ones does not stand abridged or abrogated excepting for very compelling reasons.
Balancing the different aspects relating to public order, morality and health and the desiring need of the dear and near ones of the unfortunate victims of Covid-19 or comorbidity, the bench proposed to issue certain guidelines which may be meaningfully understood and applied by those in Governance at the level of the local self-government institutions as well as the State Government:
i) When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children, after completion of hospital formalities. The body should be secured in a body bag, the face end of which should be preferably transparent and the exterior of which will be appropriately sanitized/decontaminated so as to eliminate/minimize the risk to the people transporting the dead body.
ii) The people handling the dead body shall take standard precautions, e.g., surgical mask, gloves, etc. If available and possible, PPE should be used.
iii) The vehicle carrying the dead body to the crematorium/burial ground will be suitably decontaminated.
iv) The staff of the crematorium/burial ground should be sensitized that Covid-19 does not pose additional risk. They will practice standard precautions.
v) The face end of the body bag may be unzipped by the staff at the crematorium/burial ground to allow the relatives to see the body for one last time. At this time, religious rituals, such as reading from religious scripts, sprinkling holy water, offering grains and such other last rites that do not require touching of the body, should be allowed.
vi) After the cremation/burial the family members and the staff of the crematorium/burial ground should appropriately sanitize themselves.
vii) As a social distancing measure, large gathering at the crematorium/burial ground should be avoided.
viii) The persons handling the dead body shall go directly from the hospitals to the crematorium/burial ground, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided.
ix) In case the body of a Covid-19 infected deceased is unclaimed, the same shall be cremated/buried as the case may be with due dignity, at State expense.